Brief concerning the scope and meaning of certain provisions in the constitutions of the German Länder* Prof. Dr. Matthias Niedobitek, Chemnitz University of Technology [May, 13,2013] Structure I. Preface II. Basic features of the German federal State III. The Länder as states 1. Elements of Länder statehood 2. Originality of Länder statehood 3. Attributes of Länder statehood IV. Constitutions of the Länder 1. Constitutional autonomy 2. Constitution-making 3. Constitutional amendment V. The democratic principle in the Land constitutions 1. The Länder as "democratic states" 2. The peoples of the Länder 3. Sovereignty of the people 4. Democratic representation 5. Summary VI. Right to self-determination VII. Conclusions * Translations of academic literature and of court decisions into English were carried out by the author. Translations of provisions of Land constitutions were also carried out by the author or taken from the official Websites of the lö/jäfer. 2 I. Preface • Scope of assignment I have been retained by the Quebec Government to submit my opinion reiating to certain questions of German Constitutional Law that were submitted to me. I understand that my opinion is being sought in connection with pending litigation before the Quebec Superior Court reiating to the Act adopted by the Quebec National Assembly entitled: An Act Respecting the Exercise of the Fundamental Rights and Prerogatives of the Quebec People and the Quebec State"" (S.Q., 2000, c. 46). The following questions were submitted to me: 1) In the German federation, what is the meaning and scope attributed to principles proclaimed in the constitutions of the Länder such as: > the Bavarian people; > the people are sovereign (example: Saxony-Anhalt); > the power of the State originates from the people (example: Lower Saxony); > the people shall express their will through elections and votes; decisions shall be arrived at by majority votes (example: Bavaria); > the people have given themselves this constitution by an act of free self-determination (example: Thuringia); > the people of the Free State of Saxony? Are these principles compatible with federal constitutional law respecting the division of legislative powers and the rules goveming constitutional amendments? 2) To your knowledge, are there other analogous principles of the Land constitutions that are similar to the principles proclaimed in sections 1 to 5 and 13 of the Act Respecting the Exercise of the Fundamental Rights and Prerogatives of the Quebec People and the Quebec State "? Lf so, what would be the answers in this regard to the questions asked in the previous section? • Scope of review I personally wrote this report and did the research upon which it is based. In preparing this report, 1 have reviewed and relied upon the relevant academic literature, on decisions by the German Federal Constitutional Court (coUection of cases: BVerfGE) and on my own research in the fields of German federalism and the constitutional law of the German states {Länder), as described in Appendix 1. I submit my opinion based on German law. I have not been asked to, nor do 1 submit any opinion on questions of Canadian or Quebec Law. 3 • Statement of independence and qualifications This report has been prepared independently and objectively; I have no stake, directly or indirectly, in the outcome of the proceedings. I attach in Appendix 2 my curriculum vitae. • Aim of opinion While the German Länder are not sovereign states within the defmition laid down by international law, their constitutions frequently contain provisions that resemble provisions in the constitutions of sovereign states. This Brief aims to clarify the scope and meaning of these provisions in the light of the German federal constitution, called the Grundgesetz, or Basic Law (BL). • Summary of opinion My opinion in response to the questions submitted to me concerning the existence in the Land's constitutions of principles set out in sections 1 to 5 and 13 of the Quebec Act or principles similar to them, and their compatibility with the Federal Constitution can be summarized as follows: 1. (a) The German Länder are states. As states they have a people of their own, State power and a territory. (b) However, the Länder are not states as defined in international law but states within the meaning of the Basic Law, being understood that Länder statehood is not derived from the Federation but rather is recognized by it. 2. (a) The Länder are vested with constitutional autonomy. The Land constitutions and the federal constitution are in principal on an equal footing and exist alongside each other. (b) However. in those fields which are regulated in the Basic Law the Länder are subject to the federal constitution. 3. (a) The Länder are democratic states which are based on the principle of sovereignty of the people. (b) However, the peoples of the Länder are not "sovereign" in the proper meaning of the Word. They are subject to the limitations as imposed by the Basic Law. 4. (a) According to the democratic principle, all Land authority must be derived form the respective Land people. (b) However. all Land authority is subject to the limitations as imposed by the Basic Law. The peoples of the Länder consist of the German Citizens living on the Land's territory at a given time. 5. (a) The Länder are vested with the right to self-determination. (b) However, the concept of self-determination must be construed in the light of the Basic Law. The right to self-determination of the Länder has its roots in the federal constitution. 4 6. All provisions in the Land constitutions on sovereignty of the people, the democratic principle, constitutional autonomy etc. as discussed in this Brief are compatible with the Basic Law, in particular with the rules concerning the division of legislative powers and constitutional amendments. II. Basic features of the German federal State The Basic Law established Germany as a federal State {Bundestaat, see Art. 20 para. 1 BL). As a federal State, the German State intemally consists of two levels, both of which have State character: the Federation and the individual Länder. The statehood of the German Länder is reflected in many provisions in the Basic Law as well as in the fact that all the Länder have adopted their own written constitutions. It is agreed that the concept of Länder statehood must be defined by reference to the Basic Law rather than international law. In my monograph Neuere Entwicklungen im Verfassungsrecht der deutschen Länder, 3rd ed., Speyer 1995, I summarized on p. 2 that the Länder " [FREE TRANSLATION] are not sovereign states as defined by international law but states within the meaning of the Basic Law."' The relationship between the Länder and the Federation is generally characterized by the twofold quality of the Länder as "autonomous" states on the one band and necessarily also as dependent members of the Federation on the other. These two elements must constantly be balanced in order to avoid tensions in the federal System. This has been stressed by the Federal Constitutional Court in its judgment of 11 November 1999 in cases 2 BvF 2, 3/98, 1, 2/99, BVerfGE 101, 158, on p. 222, where the court points to the necessary " [FREE TRANSLATION] ... balance between the "own statehood" [Eigenstaatlichkeit] of the Länder and the federal solidary Community [Solidargemeinschaft]... ".^ In those fields which are regulated in the Basic Law, e.g. the division of legislative competences between the Federation and the Länder, which according to the decision of the Federal Constitutional Court of 7 May 2001, case 2 BvK 1/00, BVerfGE 103, 332, on p. 350, " [FREE TRANSLATION] ... in a federal State can only be effected on the level of the State as a whole [Gesamtstaat] the Länder are subject to the federal constitution but for the rest the Länder are on equal footing with the Federation. Art. 28 para. 1 BL refers to the constitutional order of the Länder and thus safeguards their constitutional autonomy: German wording: "sind Staaten nicint im Sinne des Vöiicerrechts, sondern im Sinne der Bundesverfassung." ^ German wording: "... Balance zwischen Eigenstaatlichkeit der Länder und bundesstaatlicher Solidargemeinschaft ^ German wording:"... erfolgt in einem Bundesstaat nur auf den Ebene des Gesamtstaates." " [FREE TRANSLATION] The constitutional order of the Länder must conform to the principles of a republican, democratic, and social State governed by the rule oflaw, within the meaning of this Basic Law.'* In its constant jurisprudence, for example in its decision of 7 May 2001, case 2 BvK 1/00, BVerfGE 103, 332, on p. 350, the Federal Constitutional Court has interpreted that provision as follows: " [FREE TRANSLATION] The Federal Constitutional Court has repeatedly held that in an eminently federative political system such as the Federal Republic of Germany the constitutional spheres of the Federation and of the Länder in principle exist alongside each other [...]. Article 28 para. 1 BL requires no more than a certain degree of homogeneity between the federal constitution and the Land constitutions [...]. Unless the Basic Law regulates the Land constitutions the Länder are free to arrange for their constitutional law and for their constitutional jurisdiction. III. The Länder as states 1. Elements oi Länder statehood Analogous to the defmition of a sovereign State in international law, German federal State doctrine stipulates three essential elements of the statehood of the Länder. (1) the peoples of the Länder, (2) State power; (3) the territory of the Länder. These elements substantiate the statehood of the German Länder, which the Federal Constitutional Court somewhat tautologically calls Eigenstaatlichkeit ("own statehood") - see e.g. judgment of 26 July 1972, case 2 BvF 1/71, BVerfGE 34, 9, on p. 20. The first element - the peoples of the Länder - will be dealt with below (section V.